Analyzing the Non-Competition Covenant as a Category of Intellectual Property Regulation

by Charles Tait Graves –

The employee non-competition covenant is a category of intellectual property regulation, but it is rarely recognized as such. This essay proposes a new critique of the employee non-competition covenant: When we examine such covenants as a category of intellectual property regulation, they do not meet the criteria that commonly justify intellectual property laws.  Restrictive covenants are not narrowly tailored to protect only new, creative information, they provide no incentives for innovation beyond those already found in trade secret law, and they provide little balance between the needs of individual, innovative employees and the interests of their more powerful employers.

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